Aldermen on Wednesday advanced a measure aimed at shoring up a ban on the sale of non-Cubs authorized goods outside Wrigley Field against legal challenges such as the one being mounted by the vendor of Chicago Baseball magazine.
Cubs Chairman Tom Ricketts has asked officials to enforce the ban more strictly as part of his wish list in exchange for privately financing $575 million in renovations to the historic ballpark and redevelopment in the surrounding area. The ban gives the team an edge on selling its products on the busy sidewalks that flank the ballpark.
The city complied with the crackdown request early last year but a federal lawsuit filed by a vendor quickly followed. While court rulings so far have gone the city's way, a federal appellate court has raised questions about some aspects of the ban — specifically whether it might treat some forms of speech differently from others, and whether the city unfairly enforces the rules against peddlers and not the team.
The changes to the so-called Adjacent Sidewalks Ordinance, proposed by Mayor Rahm Emanuel and recommended by the City Council License Committee, would make it clear that sellers of printed materials such as Cubs magazines not produced by the team don't have to obtain a peddler's license like those required of hawkers of T-shirts, hats, trinkets and other paraphernalia.
The proposal also would redefine the areas where the ban is applied, carving out an exception for the team to sell its products on sidewalk space it owns and controls. And it would clarify that the ban applies only on game and event days. Those events would include any planned activity on the Wrigley Field Sports Plaza that the Ricketts family is building on the triangular parcel immediately northwest of the ballpark.
"These changes would make our peddling regulations to be consistent with the current case law and would make it more defendable," said Redeatu Kassa, an attorney with the city Law Department.
The lawsuit was filed last year by Left Field Media, which has long sold Chicago Baseball magazine for $2 a pop outside Wrigley. The magazine's editor and vendor, Matt Smerge, argued that the band and the requirement that he have a city peddler's license violated his First Amendment right to free speech.
The city prevailed on a challenge to the ordinance at the trial court level but that ruling is being appealed, Kassa said.
Smerge said he's been selling the magazine outside Wrigley for years. He was cited for the first time last year for violating a ban enacted in 2006. He was forced to go across the street from Wrigley, where the ban does not apply but where there are less potential customers.
The city argued that allowing vendors on the narrow sidewalks adjacent to the ballpark would jeopardize public safety. A trial court found that because Smerge is still allowed to sell across the streets surrounding Wrigley, his First Amendment rights were not violated.
However, in May, the 7th Circuit Court of Appeals said Smerge might have a "discriminatory enforcement" case when it comes to allowing the team to sell its paraphernalia and materials outside Wrigley.
The city, the court noted, has argued that the Cubs own some of the sidewalks adjacent to the field. The proposed changes to the ordinance appear to address that issue by making it clear that the ban applies only on "public ways," including streets, alleys and sidewalks "maintained or controlled by the city for use of the general public."
The appellate court also stated that the city's policy of allowing newspaper sales without a peddler's license, while it required one for baseball magazines, created "difficult constitutional problems" — thus the clarification on who needs to obtain a license.
Adele Nicholas, one of Smerge's attorneys, said they were pleased the changes would remove the requirement that sellers of written materials obtain a license. "That's a good change and one that should have been made a long time ago," Nicholas said.
But she said "we still think that there's a First Amendment right to engage in free speech by selling printed materials on the public ways in the city that's being curtailed unreasonably," she said.
Smerge, Nicholas said, sold the magazine adjacent to the ballpark with no interference from 1996 to 2015, when the city started enforcing the ordinance. The Cubs, meanwhile, sold programs, raffle tickets and other materials on their property and the public way after the enforcement began, she said.
The ordinance "should apply to everyone," Nicholas said. "What we noted in our lawsuit was that the practice was that there was no city interference with employees of the Cubs using the public way. ... We'll see if things change when the ordinance is amended."